GLOCAL UNIVERSITY

PROJECT TOPIC – WAGING WAR

SUB. BY: SHABIR CHOUDHARY,RAJAT CHOUDHARY

REGISTRATION NO: GU16R0026,GU16R0042

BALLB 4TH SEMESTER-2018

SUBMITTED TO: PRO. ABHIJIT ANAND

 AKNOWLEDGEMENT

I would like to express my special thanks to our Prof. ABHIJT ANAND who gave me the golden
opportunity to do this wonderful project on the topic WAGING WAR. I came to know about so
many new things.

I am really thankful to them. Secondly i would also like to thank my friends who helped me a
lot in finishing this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.

THANKS AGAIN TO ALL WHO HELPED ME IN

ANYWAYS.
TABLE OF CONTENT
 INRTODUCTION – 03
 WAGING WAR AGAINST THE GOVERNMENT OF
INDIA -04/05
 AJMAL KASAB CASE – 06/07
 ABETS THE WAGGING OF SUCH WAR -08
 INTENTION AND ATTEMPTING OF WAGGING WAR-
09/10
 CONCLUSION -11
 BIBLIOGRAPHY/WEBLIOGRAPHY -12
Introduction
Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is
unique in itself as it places all the three aspects at par as regards the punishment. Under
the general law a distinction has been made between abetment which has succeeded and
abetment which has failed. But as far as the legislature is concerned it treats both in the
same manner because the crime is treated of highest offence against the state.1

The expression waging a war means waging a war in the manner usual in war. A
deliberate and organised attack upon the government forces and government institutions
amounts to waging a war. [2] The first reform came in the year of 1870 where it was made
illegal for conspiring against the nation itself. This was introduced in the form of section
121A and 121B of section 4 of Chapter IV. This was the first reform in the subject. It is an
offence to conspire against the Government of India by means of criminal force, or the
show criminal force. Under this section, it is not necessary that any act or illegal omission
should take place in pursuance thereof, whereas under section107 abetment includes the
engaging with one or more persons in any conspiracy for doing of a thing, if an act or
illegal omission takes place in pursuance of that of a conspiracy, and in order to the doing
of that thing. In other words except in respect of the offences particularized in sec.121A
conspiracy per se is not an offence. The position changed in 1913 when the Criminal Law
Amendment Act came into force. It passes an emergency piece of legislation which gave
an extended effect to the law of conspiracy of India. This added two new sections that are
sec.120A and 120B of the IPC. It was added in Chapter V which widened the scope of the
conspiracy.

1
Criminal law,PSA pillai’s367(lexisnexis,13th edn,2018)
Waging War against the Government of
India:
Section 121 of the Indian Penal Code states regarding waging or attempting to wage
war or abetting waging of war against the Government of India thus: “whoever wages
war against the Government of India, or attempts to wage such war, or abets the
waging of such war, shall be punished with death, or imprisonment for life, and shall
also be liable to fine.2

Illustration:

A joins an insurrection against the Government of India. A has committed the offence
defined in this Section.

In Section 121 of the code the term ‘whoever’ applies to Indian citizens as well as
foreigners. A citizen owes allegiance by birth or naturalization, and a foreigner by his
residence. The State, in accordance with the de jure gentium, admits the right of the
foreigners to enter the country only upon the tacit condition that as they rely upon its
protection they also subject themselves to its laws.

The expression ‘Waging War’ means and can only mean, waging war in the manner
usual in war. It imports a person arraying himself in defiance of the Government in
like manner and by like means as a foreign enemy would do, having gained footing in
the realm.

2
Bare Act,Indian Penal code-1860(universal law publishing 2017)
The waging of war is the attempt to accomplish by violence any purpose of a public
nature. A deliberate and organised attack upon the Government forces and
Government offices amounts to a waging war. There are three stages of waging war
against the Government:

(i) Abetment,
(ii) Attempt and
(iii) The actual war.

Section 121 of the code places at par all the three stages of waging war. For all the
three types of offences the section imposes the same punishment.3

The words ‘wages war’ naturally import a person arraying himself in defiance of the
Government in like manner and by like means as a foreign enemy would do, having
gained footing within the realm. There must be an insurrection and there must be force
accompanying that insurrection and it must be for an object of a general nature. When
a multitude rises and assembles to attain by force and violence any object of a general
public nature, it amounts to levying war against the Government.

Every citizen is free to have his own political theory and also to propagate and work
for its establishment so long as he does not seek to do so by force or violence.

An offence under Section 121 is cognizable, non-bailable, non- compoundable, and

exclusively triable by the Court of Session. It is an offence in which the Judge may issue
warrant in the first instance.4

3
Bare Act,Indian Penal code-1860(universal law publishing 2017)
4
Criminal law,PSA pillai’s367(lexisnexis,13th edn,2018)
Mohd. Ajmal Amir Kasab: Found Guilty In The Horrific 26/11
Mumbai Attacks

v/s

State of Maharashtra

(Ajmal Kasab Case)

Facts:
Kasab was one of ten men captured during the terrorist attacks that took place in
Mumbai in November 2008. Kasab was born on September 13, 1987 in Faridkot.

The prosecution filed an 11.000 page chargesheet against Kasab on February 25,
2009. Several lawyers refused to represent Kasab citing ethical reasons. On April 1
2009, advocate Anjali Whagmare agreed to represent kasab.

His trial was scheduled to start on April 15, 2009 but was postponed to April 17, 2009
after his lawyer Whagmare had to be dismissed due to a conflict of interest.She was
replaced by Abbas Kazmi.

On February 21. 2o11. the Bombay High court upheld the death sentence awarded by
the trial court. The Bench comprised Justice Ranjanaa Desai and Justice Ranjit More.

On July 30. 2011, Kasab moved the Supreme Court of India. challenging his conviction.
The Supreme Court appointed senior advocate Raju Ramachandran as amicus curiae
and examined all the materials on record first hand. 5

www.Indiankanoon.com
5
Judgement:
Supreme Court Bench upheld the death sentence on August 29. 2012. Kasabs mercy
petition was rejected by the President. Pranab Mukherjee, on November 5, 2o12.

He was hanged to death at Yerwada jail in Pune on November 21, 2012 at 7.30 am, in
complete secrecy. Kasab’s body is buried at an unmarked location in the Yerwada jail
premises. 6

In Venu Nair v. Travancore – Cochin State [AIR 1955 Tra-Co 33], it has
been held :

(i) that it was open to the members of the society to achieve the object of the end
of capitalism and private ownership and establishment of a socialist State by
all peaceful means, ceaselessly fighting public opinion that might be against
them and opposing those who desired the continuance of the existing order
of society and the present Government;
(ii) that it would also be legitimate to presume that they desired a change in the
existing Government so that they could carry out their programme and
policy. But from these it did not follow that the society desired to bring about
the change by force and violence;
(iii) that the mere use of the words ‘fight’ and ‘war’ in their pledge, did not
necessarily mean that the society planned to achieve its object by force and
violence.7

In Maganlal Radha Krishan v. Emperor [AIR 1946 Nag.

126], the following characteristics of the offence of waging war were pointed out:

i) No specific number of persons is necessary to constitute the offence of waging war;

ii) The number of persons concerned and the manner in which they are equipped is
immaterial;

6
www.Indiankanoon.com
7
The Indian Penal code, K.D. Gaur(universal publishing delhi,4th edn.2009)
iii) The true criterion is ‘Quo Animo’, did the gathering assemble;

iv) The object of the gathering must be to attain by force and violence an object of a
general public nature there by striking directly against the state authority.

v) There is no distinction between principal and accessory and everyone who takes
part in the unlawful act incurs the same guilt.

In Mir Hasan Khan v. State [AIR 1951 Pat. 50], it was observed that it would
not be enough to show that the persons charged have connived to obtain possession of
an armory and have when called upon to surrender it used the rifles and ammunition
so obtained against the state troops.8

It must also be shown that the seizure of the armory was part and parcel of a planned
operation and that their intention in resisting the troops of the State was to over helm
and defeat the troops and then to go on and crush any further opposition with which
they might meet until either the leader of the movement succeed in obtaining
possession of the machinery of Government or until those in possession of it yield to the
demands of their leaders.

Abets the waging of such war:

Abetment of waging war is made a special offence. In Maganlal v. King Emperor
[1946 MLJ 139] it was observed that it is not essential that as a result of the abetment,
the war should in fact be waged. The main purpose of the instigation should be ‘the
waging of war’.9

It should not be merely a remote and incidental purpose but the thing principally
aimed at by the instigation. There must be active suggestion or stimulation to the use
of violence.

8
The Indian Penal code, K.D. Gaur(universal publishing delhi,4th edn.2009)
9
Criminal law, PSA Pillai’s(lexisnexis,13th edn..2017)
In Ganesh D Savarkar [(1909) 12 Ban LR 105], it was observed that
so long as a man only tries to inflame feeling, to excite a state of mind, he is not guilty
of anything more than sedition.10

One is guilty of instigating and thereby abetting the waging of war only when he
definitely and clearly incites to action. It was held that the poems published by Ganesh
D Savarkar conveyed to the readers an instigation to wage war and the accused was
guilty of abetting the waging of war.

Intention and attempting of waging war:

Intention to wage war against the Government is the most essential ingredient under
Section 121 of the code. In State (NCT of Delhi) v. Navjot Sandhu [2005 Cro LJ 3050
(SC)], when terrorists entered Parliament House with sophisticated arms and
powerful explosives when parliamentary business was being conducted, it was held
that the undoubted objective and determination of deceased terrorists was to impinge
on sovereign authority of nation and its Government.

It amounts to waging war or attempting to wage war against Government of India. It

was also held that to constitute offence of waging war under Section 121 IPC, the
intention and purpose of the warlike operations directed against the Government
machinery is an important criterion.

The Court further held that the criminal acts done by the deceased terrorists in order
to capture the Parliament House amount to waging or attempting to wage war. To
constitute offence of waging war, military or other forces need not be the direct target
of attack. It was further held that foreign nationals entering Indian Territory with a
view to subverting functions of Government and destabilising society can be held
guilty of waging war under Section 121 of the IPC.

 10
https://www.google.co.in/url?url=http://www.shareyouressays.com/knowledge/waging-war-against-
the-government-of-india-section-121-of-
ipc/119108&rct=j&sa=U&ved=2ahUKEwjmuv_akOnaAhUBi7wKHVeMBe0QFjAAegQIBhAB&q=waging+war
+in+ipc&usg=AOvVaw2coab2kO450tlvsKG7W73h
In Nazir Khan and others v. State of Delhi [AIR 2003 SC 4427] it
was observed that a pledge to overthrow capitalism and private ownership and to
work for the establishment of a socialist state does not amount to waging war against
the State, because every person is entitled to propagate the political faith of his
choice.11

 11
https://www.google.co.in/url?url=http://www.shareyouressays.com/knowledge/waging-war-against-
the-government-of-india-section-121-of-
ipc/119108&rct=j&sa=U&ved=2ahUKEwjmuv_akOnaAhUBi7wKHVeMBe0QFjAAegQIBhAB&q=waging+war
+in+ipc&usg=AOvVaw2coab2kO450tlvsKG7W73h
Conclusion
 Thus we can say that ,the offence related to State is the most gravest offence in the Ipc
and treated the highest offence in the Ipc .The expression “Waging War ” means waging
war in usual war or actual war not merely war .It imports person arraying himself in
defiance of the government in like manner and by like means as a foreign enemy would
do, having gained footing in the realm.The waging of war is the attempt to accomplish
by violence any purpose of a public nature.A deliberate and oragnaised attack upon the
government forces of the government and the government offices.
 Thus the above discussion clear that the waging war is the offence against the
government of India,and it's punishible under the section 121 of the Ipc .

BIBLIOGRAPHY
 The Indian Penal code, K.D. Gaur(universal publishing delhi,4th
edn.2009)
  Criminal Law, PSA pillai’s (LexisNexis 13th edn. 2017)
 Bare act, Indian penal code-1860(universal law publishing 2017)

WEBLIOGRAPHY
 [https://www.google.co.in/url?url=http://www.shareyouressays.com/knowledge/waging-war-against-
the-government-of-india-section-121-of-
ipc/119108&rct=j&sa=U&ved=2ahUKEwjmuv_akOnaAhUBi7wKHVeMBe0QFjAAegQIBhAB&q=waging+war
+in+ipc&usg=AOvVaw2coab2kO450tlvsKG7W73h

 https://www.google.co.in/url?url=https://www.lawteacher.net/free-law-essays/constitutional-
law/waging-a-war-against-the-state-constitutional-law-
essay.php&rct=j&sa=U&ved=2ahUKEwjmuv_akOnaAhUBi7wKHVeMBe0QFjABegQIBRAB&q=waging+war+
in+ipc&usg=AOvVaw0tk8uPtoebfrZVhLGRh0VE]

 www.Indiankanoon.com
 www.manupatra.com